Two Parties With Opposite Interest & Cause In One Suit Property Cannot Prosecute Together On One-Ness Of Interest: SC

“…Impugned Order has permitted two sets of parties having opposite interests and opposite causes vis-a-vis part of the suit property and some of the defendants, to prosecute the suit together, which cannot be permitted on the touch-stone of one-ness of interest”.

A bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia heard the matter.

AOR Arvind S. Avhad appeared for the petitioner.

In the pertinent matter, a suit was filed by one sister against two brothers, their wives, mother and remaining sister, along with third persons, purchasers etc. who were granted rights by some of the defendants before fling of the suit. This suit was for partition and separate possession of shares of two brothers, two sisters and a mother.

However, in the course of events it emerged, for the said portion of the property, the plaintiff-sister and defendants-brothers along with mother and a developer to whom the said portion of suit property was transferred chose to compromise the dispute, and the plaintiff-sister and two brothers and mother chose to let go their dispute about said portion.

But the defendant no.6 alleging collusion amongst the plaintiff and the defendants 1, 3, 7 in filing compromise, further alleged that her signatures were taken on blank papers on misrepresentation and undue influence.

Therefore, the question that had to be adjudicated upon in the matter was, whether a defendant whose interest is not identical with the plaintiff, can be permitted to be transposed as plaintiff in case of part abandonment of suit claim by the plaintiff.

While answering in negation, a single judge bench of Justice M.M. Sathaye of the Bombay High Court was of the opinion,

“…this Court has no hesitation in holding that transposition of a defendant can be permitted in case of part abandonment of the claim by the plaintiff, provided the defendant seeking transposition has identical interest with the plaintiff vis-a-vis both, contesting defendants and subject matter property. If there is a conflict of interest between plaintiff and defendant seeking transposition, in respect of even one defendant or in respect of even one of the suit property, then transposition of such defendant can not be permitted.

While further explain the reason for the same, the bench further noted, “The obvious reason for such interpretation is that if such Defendant is permitted to be transposed in a suit, then it would virtually mean that there will be more than one set of causes being permitted amongst parties in one suit and that will be clearly a mis-joinder of cause of action or a mis-joinder of parties or both. It is unimaginable that such suit can be permitted to proceed where one plaintiff wants to let go its dispute against some of the defendants in respect of some of the suit property and at the same time, defendant seeking transposition wants to proceed in respect of same subject property against the same set of defendants”.

“…in the concluding paragraph of the impugned Order, the Trial Judge has apparently proceeded on the footing of inference that the conduct of the plaintiff compromising part of the suit claim with defendant no.1 to 5 and 7 and fling of application for deletion of defendant no.7, means that plaintiff is going to withdraw full suit. This inference as well as finding is totally misconceived and unfounded and therefore cannot be sustained”, the judgment of the High Court further read.

Cause Title: Sau. Rohini Shankar Jadhav v. Sou. Nalini @ Madhavi Madhukar Murkute